FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30181
Plaintiff-Appellee,
v. D.C. No.
CR-06-0087-SEH
COBY JAMES MARLER,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
January 7, 2008—Seattle, Washington
Filed May 29, 2008
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tashima
6073
UNITED STATES v. MARLER 6075
COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the defendant-
appellant.
Leif M. Johnson, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.
6076 UNITED STATES v. MARLER
OPINION
TASHIMA, Circuit Judge:
Coby James Marler appeals the sentence imposed follow-
ing his guilty plea to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). We must
decide whether the fact that a defendant is on escape status at
the time he commits another offense means that the escape
and the subsequent offense are “related” for purposes of cal-
culating the defendant’s criminal history score under United
States Sentencing Guidelines Manual (“USSG”)
§ 4A1.2(a)(2), even though the two offenses are not related in
any other way. The district court rejected Marler’s argument
that his escape offense was related to his subsequent robbery
conspiracy offense and sentenced Marler to 57 months’
imprisonment. We have jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291. We agree with the district court
and therefore affirm the sentence.
BACKGROUND
In April 2002, Marler suffered a state felony conviction in
Montana for robbery and received a twelve-year sentence. On
January 5, 2005, he escaped from custody. He was arrested on
January 11, 2005, by officers of the Great Falls, Montana,
Police Department for conspiring with Melissa Wilson to rob
the casino where Wilson worked. The scheme was uncovered
when Wilson’s father discovered bullet holes, shell casings,
and a hand-drawn map of the casino in Wilson’s residence.
Wilson told officers that she wanted to “get back at the casi-
no” because she had been unjustly accused of stealing money
from the casino, and no one had apologized to her about the
situation.
In April 2005, Marler pled guilty in state court in Deer
Lodge, Montana, to a charge of escape and received a two-
year sentence. In November 2005, he was convicted following
UNITED STATES v. MARLER 6077
a jury trial in state court in Great Falls, Montana, of conspir-
acy to commit robbery and criminal mischief and received a
thirty-year prison term.
Officers investigating the robbery conspiracy found photos
of Marler holding handguns and interviewed several people
who stated that Marler possessed guns. Officers also spoke
with someone who recounted that Marler fired a gun into the
wall on a dare.
In September 2006, Marler was charged in federal court
with three counts of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Marler entered into a
plea agreement in which he agreed to plead guilty to the first
count, and the government agreed to dismiss the other two
counts.
The probation officer prepared a Presentence Investigation
Report (“PSR”), which determined the sentencing guideline
range to be 46 to 57 months. In calculating Marler’s criminal
history, the PSR imposed three points each for Marler’s 2002
robbery conviction, his escape conviction, and his 2005 con-
viction for conspiracy to commit robbery, pursuant to USSG
§ 4A1.1(a). The PSR then added two points because Marler
was on escape status when he committed the instant offense
of being a felon in possession, pursuant to USSG § 4A1.1(d).
Marler objected to the PSR’s criminal history calculation,
arguing that the escape charge and the robbery conspiracy
charges were “related,” for purposes of USSG § 4A1.2(a)(2),
and that he accordingly should not have received criminal his-
tory points for the sentences he received for both offenses.
His argument was based on his contention that the crime of
escape is a continuing offense and that the robbery conspiracy
occurred while he was on escape status. The district court
rejected his argument, stating that the escape conviction and
conspiracy conviction were separate offenses.
6078 UNITED STATES v. MARLER
Marler also argued that the conspiracy offense was related
to the firearm possession charge because he planned to use the
firearm in the commission of the robbery. The district court
rejected his contention because there were undisputed facts in
the record that Marler possessed and discharged the firearm
in events unrelated to the robbery.
The district court accepted the PSR’s findings and followed
its recommendations in imposing sentence. The district court
discussed the seriousness of the offense, Marler’s extensive
criminal history, and the danger Marler posed to the commu-
nity in deciding to impose a sentence at the upper end of the
guidelines range. Marler filed a timely notice of appeal.
STANDARD OF REVIEW
The district court’s interpretation of the sentencing guide-
lines is reviewed de novo, and its application of the guidelines
to the facts of a case is reviewed for an abuse of discretion.
United States v. Grissom, 2008 WL 1722813, at *4 (9th Cir.
April 15, 2008); United States v. Alghazouli, 517 F.3d 1179,
1183 (9th Cir. 2008). “We review with due deference a dis-
trict court’s determination that two crimes were not related or
consolidated for sentencing.” United States v. Asberry, 394
F.3d 712, 718 n.8 (9th Cir. 2005).
DISCUSSION
Marler raises two challenges to his sentence, both of them
based on the calculation of his criminal history score, pursu-
ant to USSG § 4A1.2. First, he contends that his escape and
his robbery conspiracy convictions are related. His second
contention is that the robbery conspiracy is related to the
instant offense of the possession of the firearm.
I. Escape and Conspiracy Convictions
[1] The criminal history guidelines are based on the princi-
ple that “[a] defendant with a record of prior criminal behav-
UNITED STATES v. MARLER 6079
ior is more culpable than a first offender and thus deserving
of greater punishment.” USSG ch. 4, pt. A, introductory cmt.
USSG § 4A1.1(a) accordingly instructs the sentencing court
to add three points to a defendant’s criminal history category
score for each prior sentence of imprisonment exceeding one
year and one month. In order to avoid overstating a defen-
dant’s criminal history, however, USSG § 4A1.2 provides that
related cases are to be treated as one sentence for criminal his-
tory purposes. USSG § 4A1.2(a)(2).
[2] Application Note 3 to § 4A1.2 provides that “[p]rior
sentences are not considered related if they were for offenses
that were separated by an intervening arrest.” USSG § 4A1.2,
cmt. n.3; see Asberry, 394 F.3d at 719. Here, there was no
intervening arrest between Marler’s escape and the robbery
conspiracy. “If there was no intervening arrest we consider
whether the sentences nevertheless ‘resulted from offenses
that (A) occurred on the same occasion, (B) were part of a
single common scheme or plan, or (C) were consolidated for
trial or sentencing.’ ”1 Asberry, 394 F.3d at 719 (quoting
USSG § 4A1.2, cmt. n.3).
1
The 2006 version of the guidelines was used in determining Marler’s
sentence. The guidelines have been amended, effective November 1, 2007.
The 2007 version eliminates the “related” language altogether in an
attempt to “simplif[y] the rules for counting multiple prior sentences and
promote[ ] consistency in the application of the guideline.” USSG app. C,
amend. 709 (2007). Section 4A1.2(a)(2) now provides that, if the prior
offenses were not separated by an intervening arrest, they are to be
counted separately “unless (A) the sentences resulted from offenses con-
tained in the same charging instrument; or (B) the sentences were imposed
on the same day.”
The sentencing court generally is to use the Guidelines Manual in effect
on the date of sentencing. USSG § 1B1.11(a); see also United States v.
Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006) (stating that “[a] district
court generally applies the version of the Sentencing Guidelines in effect
on the date of a defendant’s sentencing”). “However, if a court applies an
earlier edition of the Guidelines Manual, the court shall consider subse-
quent amendments, to the extent that such amendments are clarifying
rather than substantive changes.” USSG § 1B1.11(b)(2).
6080 UNITED STATES v. MARLER
In this case, § 4A1.1(a) was relied upon to add three points
for each of Marler’s three state convictions. However, Marler
argues that his escape conviction and his conviction for the
robbery conspiracy are related for purposes of § 4A1.2(a)(2)
and that he therefore should not have received criminal his-
tory points for both sentences. Marler does not argue that the
offenses were part of a single common scheme or consoli-
dated for either trial or sentencing. His argument rests solely
on the premise that escape is a continuing offense2 and that,
because the robbery conspiracy occurred while Marler was on
escape status, the two offenses “occurred on the same occa-
sion.” USSG § 4A1.2, cmt. n.3.
The Sentencing Commission explained that § 4A1.2 needed to be
amended because the “related cases” rule was too complex and had led to
confusion and a “significant amount of litigation.” USSG app. C, amend.
709 (2007). Rather than merely clarifying the “related cases” concept, the
2007 version adopts a completely new inquiry. The 2007 amendment
accordingly was a substantive change, not a clarifying change, and does
not apply retroactively. Accord United States v. Wood, 2008 WL 1902663,
at *4 (3d Cir. May 1, 2008) (holding that “the amended version of
§ 4A1.2(a)(2) effects a substantive change” and therefore did not apply
retroactively, reasoning that Amendment 709 does not incorporate the “re-
latedness” concept into the main body of § 4A1.2, removes “any consider-
ation of whether the offenses in question share any temporal proximity or
factual relationship,” and “fails to mention the notion of consolidation”);
United States v. Godin, 522 F.3d 133, 135 (1st Cir. 2008) (holding that
Amendment 709 was substantive, stating that “[t]he Commission said that
a conflict existed as to the interpretation of the earlier guideline and, in
lieu of clarification in favor of one view or the other, it adopted a new
blanket rule that eliminates the ambiguity by going beyond any circuit’s
reading of the previous rule”). We therefore apply the 2006 version
throughout this opinion.
2
Marler relies exclusively on federal cases in arguing that escape is a
continuing offense under Montana law. Because the government does not
challenge this characterization, we assume that under Montana law, as
under federal law, escape is a continuing offense, at least for some pur-
poses.
UNITED STATES v. MARLER 6081
[3] We disagree with Marler’s contention. It is true that the
Supreme Court has stated that escape from federal custody is
a continuing offense; however, this characterization is not for
purposes of determining whether crimes are related in the sen-
tencing context. Rather, the Supreme Court has “stated that
the crime of escape is a continuing offense because of the
threat to society posed by an escaped prisoner and because the
statute of limitations is tolled during the period an escapee is
at large.” United States v. Alcarez Camacho, 340 F.3d 794,
796 (9th Cir. 2003) (discussing United States v. Bailey, 444
U.S. 394 (1980)).
The question in Bailey was whether criminal defendants
charged with escape who claimed that they were entitled to a
jury instruction on their defense of duress or necessity needed
to “proffer evidence of a bona fide effort to surrender or
return to custody as soon as the claimed duress or necessity
had lost its coercive force.” Bailey, 444 U.S. at 415. The
Supreme Court held that the prosecution needed only estab-
lish that “an escapee knew his actions would result in his
leaving physical confinement without permission,” and that,
“in order to be entitled to an instruction on duress or necessity
as a defense to the crime charged, an escapee must first offer
evidence justifying his continued absence from custody as
well as his initial departure.” Id. at 408, 412.
[4] Bailey does not support Marler’s contention that his
escape conviction and robbery convictions were related for
purposes of USSG § 4A1.2. Bailey merely addressed the mens
rea required for an escape offense and whether, under the evi-
dence presented, the defendants were entitled to a jury
instruction on their theories of duress and necessity. The con-
tinuing nature of an escape offense does not mean that the
escape offense continued to “occur” within the meaning of
USSG § 4A1.2.
[5] We have not had occasion to determine whether the
continuing nature of an offense such as escape necessarily
6082 UNITED STATES v. MARLER
means that any offenses committed while on escape status are
“related” to the escape for sentencing purposes.3 However, we
believe that treating Marler’s escape and robbery conspiracy
offenses as related would not be consistent with the purpose
of § 4A1.2, which is “to reflect the seriousness of a defen-
dant’s criminal history,” while, at the same time, avoiding
“overstat[ing] the seriousness of the defendant’s criminal con-
duct.” Asberry, 394 F.3d at 719. Deeming any offense com-
mitted while on escape status as related to the escape would
be inconsistent with the purpose of the criminal history guide-
lines to send “a clear message . . . that repeated criminal
3
We have addressed the effect, in other contexts, of the continuing
nature of a violation of 8 U.S.C. § 1326, illegal reentry, which, like
escape, routinely has been held to be a continuing offense. See, e.g.,
United States v. Jimenez-Borja, 378 F.3d 853, 857, 858 (9th Cir. 2004)
(stating that the crime of being “found in” the United States, in violation
of 8 U.S.C. § 1326, is a continuing offense, and that the date the offense
ends “is significant for purposes of the statute of limitations, determining
the applicable sentencing guidelines, and for venue”). However, we have
not addressed the continuing nature of this offense in the context of deter-
mining whether prior sentences are related by virtue of having occurred
“on the same occasion.”
In United States v. Reyes-Pacheco, 248 F.3d 942, 944 (9th Cir. 2001),
the defendant admitted illegally reentering the country in April 1996, but
he was not “found” by authorities until February 2000. He asserted that
the district court should have used the February 2000 date as the date of
the offense, rather than the earlier date, because then he would not have
received criminal history points for committing the illegal reentry offense
“while on parole and within two years of being released from prison,” pur-
suant to USSG § 4A1.1(d) or (e). Id. at 945. We rejected his argument,
reasoning that the offense was a continuing offense that began when he
entered the country and continued until he was found by authorities, and
that “ ‘part of the instant offense’ ” accordingly occurred when he was on
parole. Id. at 946 (quoting USSG § 4A1.1, cmt. nn. 4,5).
Reyes-Pacheco is inapposite. Determining the date of the offense for
purposes of determining whether the defendant committed the offense of
conviction while on parole or within two years after release from impris-
onment is not relevant to the question of whether two prior offenses are
related because they occurred on the same occasion.
UNITED STATES v. MARLER 6083
behavior will aggravate the need for punishment with each
recurrence.” USSG ch. 4, pt. A, introductory cmt.
Finding the escape and the robbery conspiracy related
within the meaning of § 4A1.2 is particularly inappropriate
where, as here, there is no indication that the offenses were
related to each other in any way — for example, the robbery
offense was not committed in order to effect, or in the process
of effecting, the escape, and the escape was not committed in
order to effect the robbery. The two offenses were “not simi-
lar in nature,” Asberry, 394 F.3d at 720, but instead were “en-
tirely different crimes . . . that . . . resulted from [ ] discrete,
identifiable illegal act[s],” United States v. Ladum, 141 F.3d
1328, 1347 (9th Cir. 1998).
[6] Marler escaped on January 5, 2005, when he left the
Great Falls Transition Center, where he was an inmate, pur-
portedly to go to a work assignment. Marler never reported to
work and, in fact, was not scheduled to work that day. At this
point, for criminal history calculation purposes, the escape
was complete, even though Marler continued to be on escape
status. Cf. United States v. Banashefski, 928 F.2d 349, 352
(10th Cir. 1991) (reasoning that a stolen vehicle offense was
not part of the crime of being a felon in possession, for pur-
poses of USSG § 4A1.2(a)(1), because the felon in possession
crime “was complete before [the defendant] approached the
car, and continued as well”). The robbery conspiracy was
formed with Wilson several days later, as a form of revenge
for the allegedly unjust theft accusation against Wilson by the
casino. The escape and the robbery conspiracy accordingly
involved “conduct severable by time, place, and harmed soci-
etal interest.” United States v. Vargas-Garcia, 434 F.3d 345,
350 (5th Cir. 2005) (holding that a resisting arrest offense was
not part of an illegal reentry offense for purposes of USSG
§ 4A1.2(a)(1)), cert. denied, 547 U.S. 1103 (2006).
[7] In addition, the cases were entirely separate and inde-
pendent of each other. They were prosecuted in different
6084 UNITED STATES v. MARLER
counties and Marler was represented by different lawyers. He
pled guilty to the escape charge on April 7, 2005, and
received a two-year term, whereas he was convicted on the
conspiracy charge on November 3, 2005, following a jury
trial, and received a thirty-year sentence. Cf. Asberry, 394
F.3d at 719-20 (holding that two offenses were not consoli-
dated and were therefore unrelated, where the defendant was
sentenced for both offenses “in the same court proceeding
pursuant to a single plea agreement,” but the offenses “were
not similar in nature,” and “the sentencing court used different
docket numbers for the two offenses, did not issue a formal
consolidation order and imposed consecutive sentences”).
Marler’s reliance on United States v. Connor, 950 F.2d
1267 (7th Cir. 1991), is also unavailing. In Connor, the Sev-
enth Circuit held that the defendant’s conviction for posses-
sion of a dangerous weapon was erroneously counted
separately from his conviction for possession of stolen goods
because the defendant “most likely had the knife and pistol to
defend himself and possession of the very valuable stolen
goods.” Id. at 1270. Unlike Connor, in which the defendant’s
possession of the weapons was in furtherance of his posses-
sion of stolen goods, here, there is no indication that the rob-
bery conspiracy was related in any way to the escape.
[8] The overall purpose of § 4A1.2(a)(2) and its Applica-
tion Note 3 is to determine whether prior sentences are so
related that the imposition of criminal history points for both
sentences would unfairly overstate the seriousness of the
defendant’s criminal history. In determining whether offenses
are related, “our ultimate goal remains finding a sentence that
accurately reflects both the seriousness of the underlying fed-
eral offense and the extent and nature of the defendant’s crim-
inal past.” Asberry, 394 F.3d at 719. Treating Marler’s escape
offense and his robbery conspiracy offense as related based
solely on the premise that the escape was continuing at the
time he committed the robbery conspiracy offense would
allow “the concealed and extended nature” of the escape
UNITED STATES v. MARLER 6085
offense to “shield multiple and ‘severable instances of unlaw-
ful conduct’ from their appropriate consequences at sentenc-
ing.” Vargas-Garcia, 434 F.3d at 349 (quoting Banashefski,
928 F.2d at 352). We therefore affirm the district court’s find-
ing that the escape and the robbery conspiracy were not
related offenses for purposes of USSG § 4A1.2(a)(2). Cf.
United States v. Esteppe, 483 F.3d 447, 451-53 (6th Cir.
2007) (rejecting the defendant’s argument that his escape
offense was related to two burglaries committed subsequent
to his escape by virtue of being “part of a single common
scheme or plan,” and holding that “all purportedly related
offenses must have been conceived of by the defendant prior
to committing the first offense in order to treat all of them as
related”); United States v. Wiseman, 172 F.3d 1196, 1219-20
(10th Cir. 1999) (similarly rejecting the argument that an
escape was related to robberies committed while on escape
status, reasoning that the escape and the robbery offenses
“were separated by several months in time and over a thou-
sand miles in distance,” “[t]here were no common victims,”
and “the escape clearly was a separate act”).
II. Firearm and Conspiracy Convictions
[9] Marler’s second contention is that he should not have
been assigned criminal history points for the robbery conspir-
acy offense because the conspiracy was relevant conduct to
the firearm offense. Application Note 1 to § 4A1.2 provides
that a prior sentence is included in the criminal history calcu-
lation “if it was for conduct other than conduct that was part
of the instant offense. Conduct that is part of the instant
offense means conduct that is relevant conduct to the instant
offense,” pursuant to § 1B1.3. USSG § 4A1.2, cmt. n.1. Rele-
vant conduct is defined to include conduct “that occurred dur-
ing the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” USSG
§ 1B1.3(a)(1).
6086 UNITED STATES v. MARLER
Marler contends that the conspiracy offense is relevant con-
duct to the firearm offense because his possession of the fire-
arm “took place during the course of the robbery conspiracy.”
The district court disagreed, reasoning that there were undis-
puted facts in the record that Marler possessed and discharged
the firearm “in events unrelated to this robbery.”
Marler does not point to any evidence that his possession
of the firearm occurred in conjunction with the robbery con-
spiracy. The count to which he pled guilty alleged that he pos-
sessed the firearm from November 2004 to January 2005, a
time period that began before the robbery conspiracy began.
Nor does Marler dispute the facts on which the district court
relied to find that the robbery was not relevant conduct to the
firearm offense. Instead, he argues, without citation to any
evidence in the record, that he possessed the firearm in the
apartment where the robbery was planned and most likely
intended to use the firearm during the robbery. Marler does
not deny that he possessed the firearm on other occasions
prior to and unrelated to the robbery conspiracy.
[10] As with the escape and the robbery conspiracy, it
would not further the purpose of the criminal history guide-
lines to find that the robbery conspiracy was relevant conduct
to the firearm offense, especially where there is no evidence
to support such a finding. The district court accordingly did
not err in rejecting Marler’s contention.
CONCLUSION
Marler’s prior sentence for escape is not “related” to his
robbery conspiracy sentence for purposes of USSG § 4A1.2.
Deeming the robbery conspiracy as having occurred on the
same occasion as his escape solely because escape is deemed
to be a continuing offense for some purposes is inconsistent
with the purpose of the guideline to reflect accurately the seri-
ousness of the defendant’s criminal history, especially here,
where the two offenses are not related in any other way.
UNITED STATES v. MARLER 6087
Instead, they were discrete, dissimilar offenses. The district
court therefore did not err in finding that they were not related
offenses. The district court also did not err in finding that
Marler’s robbery conspiracy conviction was not related to his
firearm conviction. The sentence imposed by the district court
is
AFFIRMED.